This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-01-2222

 

 

In re:

Dori Lynn Thompson, petitioner,

Appellant,

 

vs.

 

Mark Edin Thompson,

Respondent.

 

 

Filed June 11, 2002

Affirmed as modified

Harten, Judge

 

Olmsted County District Court

File No. F9-96-2785

 

David W. VanDerHeyden, VanDerHeyden & Ruffalo, P.A., 1915 Highway 52 North, Suite 218, P.O. Box 6816, Rochester, MN 55903-6816 (for appellant)

 

Thomas C. Baudler, Baudler, Baudler, Maus & Blahnik, L.L.P., 108 North Main Street, Austin, MN 55912 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

 

            In this postdissolution matter, respondent’s wife of his subsequent marriage provided health insurance for the children of respondent’s previous marriage through insurance programs offered to her by three successive employers.  This arrangement was undertaken because appellant, respondent’s previous wife, was responsible for providing health insurance and could not do so.   Respondent successfully moved the district court for an order requiring appellant to reimburse him for insurance costs paid by his spouse and her employers.  Appellant now challenges that district court order.  Because we conclude that respondent is entitled to reimbursement only for the amounts actually paid by his spouse either as paycheck deductions or as a negotiated provision of her employment contract and is not entitled to amounts paid by his spouse’s employer, we affirm the district court’s order as modified by this opinion.

FACTS

 

Appellant Dori Thompson and respondent Mark Thompson are the parents of three minor children.  The judgment dissolving their marriage provided that appellant would provide health insurance for the children.  For the first year, she did so; the children were insured through her employer.  But appellant then quit her job and was injured in a car accident before she could begin new employment. 

For the next three and one-half years, the children were insured by respondent’s wife through her three successive employers: Crossroads Motors from December 1997 to September 1999; Speltz Elevator from September 1999 to December 2000, and Blooming Prairie Grain from December 2000 to May 2001.  It is undisputed that the total cost of this insurance was $15,091.87, which respondent attempted to recover from appellant.  Following a hearing, the district court ordered appellant to reimburse respondent that amount.  This appeal followed.

D E C I S I O N

Because maintaining medical insurance is an element of child support, the appropriate standard of review is abuse of discretion.  See Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (district court has broad discretion to provide for support of parties’ children); Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (modification of child support reversed only if district court abused discretion).

Appellant argues first that respondent is estopped from seeking reimbursement.  “[T]he doctrine of equitable estoppel does not apply as a matter of law where there is no evidence of misrepresentation.”  Davies v. West Pub. Co., 622 N.W.2d 836, 843 (Minn. App. 2001), review denied (Minn. 29 May 2001).  The hearing transcript contains no mention of misrepresentation, and appellant offers no other evidence of it.  She merely asserts her own conclusion that respondent “led [her] to believe” that he would provide insurance without seeking reimbursement and that he did not tell her he expected to be reimbursed.  But she offers no specific evidence supporting her belief that respondent assumed her obligation to provide insurance.  Moreover, respondent stated in his affidavit that he repeatedly asked appellant for reimbursement and that she repeatedly said that she was unable to pay him.  It is respondent’s conduct, not appellant’s belief, that can support a claim of estoppel.  Absent any evidence of respondent’s conduct, appellant’s estoppel claim fails.

Appellant next argues that respondent waived his right to have appellant provide insurance pursuant to the dissolution judgment.  “[W]aiver is an intentional relinquishment of a known right made apparent from the disclosed facts.”  State v. Champion, 594 N.W.2d 526, 528 (Minn. App. 1999).  Again, waiver was not mentioned at the hearing, and appellant discloses no facts indicating that respondent waived his right to expect reimbursement for his fulfillment of appellant’s obligation.  She says only that he did so  “[u]nder the facts and circumstances of this case by his words and conduct” [sic].  But no specific evidence of waiver is apparent; accordingly, appellant’s assertion lacks merit.

Finally, appellant challenges the reimbursement amount awarded to respondent, arguing that he is not entitled to reimbursement for insurance financed by his wife’s employers.  We will consider each employer separately.  The first, Crossroads Motors, submitted two conflicting documents, both signed by the same payroll clerk.  On 8 May 2001, the clerk provided a letter “To Whom It May Concern” indicating that Crossroads Motors employees are charged only for family coverage, not single coverage, and that respondent’s wife paid $6,970 for family coverage.  On 21 August 2001, the clerk wrote to appellant’s attorney saying that respondent’s wife paid $3,076.22 for family insurance coverage and that Crossroads Motors paid $4,689.78.  We assume that the more recent document, specifying who paid how much, is more accurate and conclude that respondent is entitled to $3,076.22 reimbursement for this period.[1] 

The next employer was Speltz Elevators, Inc..  Speltz Elevators also submitted two relevant documents.  The first, dated 9 May 2001, stated that while respondent’s wife was employed, “Speltz paid insurance premiums totaling $8,746.50.  Of that amount, $5,726.07 was expended for dependent premiums.”  The second, dated 14 August 2001, stated that “there is no evidence of any payment made by [respondent’s wife] for her insurance or her dependant coverage as no payments were made by [her].”  Because respondent’s wife did not pay for the parties’ children’s insurance during this period, we conclude that respondent is not entitled to reimbursement for this period.

The third employer was Blooming Prairie Grain, Inc., which also submitted two documents.  The first, dated 2 May 2001, stated that respondent’s wife’s “cost to carry medical & dental dependent coverage each month is $399.30” and that the total for December 2001 to May 2001 was $2,395.80.  The second, a letter signed by the president of Blooming Prairie Grain, stated that

[Respondent’s wife] was offered salary, vacation and insurance that she would pay for[.]  We negotiated on the contract since she needed family coverage.  Her contract is now the salary, family insurance, and her vacation time[.]  Had she not needed family insurance her salary would have increased. As one way or another it is an expense to someone. [sic]

 

We conclude that the district court did not abuse its discretion by inferring that the salary would have been increased in the amount of the insurance premium and that respondent is entitled to the $2,395.80 paid by Blooming Prairie Grain.  We also note that, by having the children insured through his wife’s employers, respondent acted prudently; had he simply purchased insurance independently for the children, the cost probably would have been higher, and appellant would have undoubtedly been liable for that cost.

We therefore modify the district court’s order by reducing appellant’s repayment obligation from $15,091.87 to $5,472.02, (the $3,076.22 paid by respondent’s wife while she worked at Crossroads plus the $2,395.80 paid by Blooming Prairie Grain in lieu of salary).

Affirmed as modified.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] We note that, at the hearing and in her brief, appellant concedes the accuracy of this amount.